Reflections on Title IX and the Dear Colleague Letter

As part of my summer internship with Emory University‘s Respect Program, I recently attended an ATIXA training on how to investigate sexual harassment/assault claims as mandated by Title IX. It was an interesting training, but (at least for me) it raised more questions than it answered.

First, some background: Title IX, the federal law prohibiting educational discrimination on the basis of sex for programs that receive federal funding, turned 40 this year. For most of its existence, it has been used to justify (among other things) gender* parity for things like school sports–and it is for this that the law is best known.

However, in 2011 the federal Office for Civil Rights (OCR) published what is known as the Dear Colleague Letter, or DCL. DCLs are published fairly regularly on a variety of topics, but this particular letter has become the DCL, and that’s because it mandated a major overhaul in how federally-funded schools (k-12 institutions and any university that receives federal assistance, which is most of them) handle sexual assault and harassment.

Because these issues are gendered violence–women are much more likely to be the victims, and the violation is sexual in nature–the OCR ruled that failing to address sexual assault/harassment at an institutional level is a violation of Title IX. It leads to a hostile educational environment based on sex.

The DCL mandated that universities do several things, including:

  • Keep statistics about assault rates.
  • Have a process for sanctioning institution members who have committed sexual assault/harassment, and have that process be reasonably quick and equitable for the victim (as well as consistent between cases). The process must use “more likely than not” as its standard of evidence, rather than “beyond a reasonable doubt.” (This puts it in line with civil court cases.)
  • Have institution-level prevention and education programming to stop sexual assault/harassment.

There’s a lot that I’m leaving out here, but the gist of the letter is that there needs to be tracking, a survivor-supportive way for people who have been assaulted to pursue sanctions for the person who has assaulted them, and efforts at reducing sexual assault rates through education and prevention efforts.

The DCL is more than a year old now, and so universities are increasingly worried about being compliant with Title IX. If they’re not, they can be sued by the federal government, and no one wants that. But–in part because of its very large recipient base–the DCL’s requirements for Title IX compliance can lead to a lot of logistical questions. What does a campus that actually meets these requirements look like? How does that change when we’re talking about a commuter-heavy population or an institution (like my own alma mater, Oxford College) that only has 750 students?

After the investigator training, these are the main questions I was left with:

  1. Does a student conduct process meet the requirements for a “prompt and equitable” process? How does this change when it’s a sexual assault case being brought before conduct, rather than a case about underage drinking or theft? For those of you not currently on a campus, most schools (particularly undergraduate colleges) have a conduct process for dealing with issues between students. Even if a criminal act has occurred, students may chose to go through conduct instead of/in addition to a legal trial for a variety of reasons–most notably because the conduct process doesn’t require lawyers and can lead to school sanctions (expulsion or suspension) that a court case can’t bring. It is still unclear to me whether the DCL requires survivors to go through up to three processes (Title IX, conduct, and a court case) to pursue their attacker, if they chose to do that. Personally, I’m in favor of conduct being that process, because it is a process most students are already familiar with. However, I support requiring conduct officials to have written (perhaps different) protocol for sexual assault cases and requiring conduct officials to be trained on sexual assault response best practices.
  2. How much information is the school required to collect? Who collects it? What happens when a survivor does not want to give his or her name? Most people who have been sexually assaulted do not want to be forced to give their names when they’re seeking services that don’t require it (advice on where to go off campus, for example, or information about what services a university provides). Many people either don’t know who their attacker is or don’t want to give the name for a complex variety of reasons (that person may be a friend, they may fear retribution, etc.). I worry that if everyone is required to collect all of that information, it stands in the way of promoting a survivor-supportive campus, which I feel is at the heart of the DCL. In addition, I work as a sexual assault peer advocate (SAPA) on my campus. Am I obligated to report? I am listed as a SAPA on university resources, but I am not paid, and I think most students who come to me don’t expect me to have to report what they tell me to the Title IX coordinator. I worry that increased reporting obligations (beyond statistical data and whatever students give voluntarily) will discourage people from reporting an already under-reported crime.
  3. Who is doing this right? This is perhaps the biggest one. The OCR has not provided a list of universities that are compliant (at least not that I can find), and has not provided case studies of why they are compliant. I would love to see a list of place that are doing this right with different approaches and different student bodies.

These are the main questions that I’ve been considering this summer. What about you? Have you read the DCL, or do you worry about Title IX compliance?

* I’m using gender and sex interchangeably here because “sexual parity” is confusing, but Title IX only protects discrimination on the basis of sex, not gender identity.


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